Citation Nr: 0330304
Decision Date: 11/04/03 Archive Date: 11/13/03
DOCKET NO. 93-24 158A ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Newark, New Jersey
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim for service connection for residuals of a
right hand injury.
2. Whether new and material evidence has been received to
reopen a claim for service connection for residuals of a
right ankle injury.
3. Whether new and material evidence has been received to
reopen a claim for service connection for residuals of a
left ankle injury.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Thomas A. Pluta, Counsel
INTRODUCTION
The appellant had active duty for training from May to July
1988.
This appeal to the Board of Veterans' Appeals (Board) arises
from June and September 1993 rating actions that denied
service connection for residuals of right hand and bilateral
ankle injuries on the grounds that new and material evidence
had not been received to reopen the claims. A Notice of
Disagreement was received subsequently in September 1993, and
a Statement of the Case (SOC) was issued in October 1993. A
Substantive Appeal was received in November 1993.
Supplemental SOCs (SSOCs) were issued in January and June
1994, March 1995, and November 1997.
In November 1999, the appellant testified at a hearing before
a Member of the Board (Veterans Law Judge) (VLJ) at the RO
(Travel Board hearing); a transcript of the hearing is of
record.
In February 2000, the Board remanded this case to the RO for
due process development. By rating action of May 2002, the
RO confirmed and continued the denials of service connection
for residuals of right hand and bilateral ankle injuries on
the grounds that new and material evidence had not been
received to reopen the claims. SSOCs were issued in
September 2002 and June 2003.
REMAND
As noted above, the appellant offered testimony during a
Travel Board hearing before a VLJ in November 1999. However,
the Board no longer employs the VLJ who conducted that
hearing. Because the law requires a VLJ who conducts a
hearing on appeal to participate in any decision made in that
appeal, in September 2003, the Board sent the appellant a
letter requesting her to clarify whether she wanted another
Board hearing. The appellant responded in October 2003 with
a request for another Travel Board hearing.
In order to ensure full compliance with due process
requirements, this case is hereby REMANDED to the RO for the
following action:
The RO should schedule, at the earliest
available opportunity, a Travel Board
hearing for the appellant and any
witnesses. A copy of the notice to
report for the hearing should be sent to
the appellant, with a copy to her
representative. Any failure of the
appellant to report for the hearing
should be clearly documented for the
record. Thereafter, the claims file
should be transferred directly back to
the Board in accordance with current
appellate procedures.
The purpose of this REMAND is to afford due process; it is
not the Board's intent to imply either a grant or a denial of
the benefit sought. The appellant needs take no action until
notified, but she and her representative may submit
additional evidence and/or argument during the appropriate
timeframe. See Kutscherousky v. West,
12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104
(1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v.
Derwinski, 3 Vet. App. 129 (1992).
_________________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).